How to ascertain limitation for seeking declaration that there was no marriage?

 If a party wants a declaration that there was no marriage and no marriage was conducted and thereby the status of the wife or husband should not be given to any of the spouses, then it will be a relief outside the purview of the matrimonial laws under the statutes no such declaration be possible and that is a common law remedy available which was codified into a right under Section 34 of the Specific Relief Act. Once such declaration has to be sought for, which is not coming under the purview of the Marriage Laws as per the statutes provided for that purpose, then the bar under Section 29(3) of the Limitation Act will not be attracted and for such suits or proceedings, the general of limitation available for seeking such declaration alone can be attracted.

47. This aspect has been considered by the Allahabad High Court in the decision reported in R.P. Agrawal v. Smt. Urmila Devi (MANU/UP/0787/1981 : 1982 Allahabad Law journal 260), where it has been held that, where an application for maintenance under Section 488of Code of Civil Procedure 1898(old) was filed by alleging solemnisation of marriage before coming into force of Hindu Marriage Act to have that marriage declared invalid could be governed by Article 58 and not residuary Article 113 and hence would be barred by limitation, when filed after expiry of three years from the date of application under Section 488. Further as Hindu Law of Marriage which was in force before the commencement of Hindu Marriage Act, 1955 did not provide for a suit for a declaration that the marriage solemnised while the applicant's husband by earlier marriage was alive and invalid. Further even going by the dictum mentioned above, it will be seen that, in order to attract the provisions of the Hindu Marriage Act, for nullifying the marriage or dissolving the marriage, it can be done only on the grounds available therein and solemnisation of the marriage must be admitted. Further in this case, appellant is not admitting the marriage, but only admitting the relationship and he wanted a declaration that there was no marriage at all.

48. Further it was admitted by the appellant that, even in the year 1988, when they started residing separately, the respondent filed an application for maintenance for herself and for the minor child and in that case, the appellant admitted the existence of marriage and suffered an order against him. Even in the subsequent proceedings between the parties also, he did not object the existence of marital relationship between the parties, which was necessary for deciding the issues in those cases. So he did not object the status of the respondent as his wife for want of customary marriage at the first point of time when it occurred for consideration. But suffered an order against him.

49. Article 58 of Limitation Act which reads as follows:

In both these articles, the Limitation will start when the right to sue first accrues.

50. As far as the appellant is concerned, that has accrued to him when the respondent had made a claim for maintenance, alleging that she is the legally wedded wife of the appellant and a suit filed long after suffering an order of maintenance namely nearly 17 years of that cause of action is highly belated and barred by limitation. Since it is a question of law which has to be considered by the court even if it is not raised that can be considered by the appellate court at the appellate stage in an appeal filed by the appellant invoking the power under Order 41 Rule 22 and 33 of Code of Civil Procedure. So the suit filed after three years of the accrual of the cause of action to the appellant to challenge the same, is clearly barred by limitation and on that ground also the appellant is not entitled to get the relief claimed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 351 of 2006

Decided On: 16.06.2017

 D. Sivadasan

Vs.

 Santha

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

1. The plaintiff in OS. No. 106/2005 on the file of the Family Court, Kottarakara is the appellant herein. The suit was filed by the appellant for a declaration that there is no legal and customary marriage between the plaintiff and the defendant and the defendant is not his wife. It is alleged in the plaint that the plaintiff and the defendant were neighbours and they fell in love and gradually developed carnal relationship. At the time when the love between them started, the plaintiff was employed in Navy and he got employment at the age of 19. On 4.4.1968, the relationship between the plaintiff and the defendant came to the knowledge of the defendant's father and relatives and while they were in such relationship, the plaintiff was caught and manhandled by the defendant's father and her relatives. On account of the compulsion of the defendant's father and relatives, he agreed to marry the defendant. On the same day itself, he had taken the defendant to his house though his parents protested the same. When the plaintiff assured that he would marry her and take care of her, the defendant returned to her house. Thereafter he went to his workplace and came during August, 1968. On 12.8.1968 they executed a marriage registration agreement undertaking to live together as husband and wife. On that day itself, the defendant's father settled 73 cents of land in the joint names of the plaintiff and defendant. There was no valid marriage between the plaintiff and the defendant. At the time when the marriage agreement was executed, the plaintiff was aged 21 years and the defendant was aged 19 years. There was no customary marriage conducted by performing rituals prevailing among Thiyya community to which both of them belong. It was not registered with the SNDP Sakha of their locality. The marriage was not registered as per the Hindu Marriage Act as well. There was no exchange of rings or garlands and there was no tying of thali.

2. On 6.7.1969 the defendant gave birth to a female child by name Minimol. At the beginning of the relationship, the plaintiff did not take the defendant to his place of employment. when he came to understand some illegal relationship of the defendant, at the instance of her father, he had taken her to Visakhapatnam where he was working at that time and resided in a rental house. Thereafter he got transfer to Kochi. The second child Shine was born at Kochi on 9.4.1976. They resided together at Kochi till 1979. She was not acting as a dutiful wife or not caring for the words of the plaintiff and often going to her house without his consent. He tolerated all these things considering the welfare of the children. During 1979, he was transferred to Mumbai and he had taken the defendant and the children with him. While at Mumbai, he was affected by Epilepsy, treated in Navy Hospital and thereafter at Armed Force Medical College, Pune, and later diagnosed that Epilepsy developed due to Tuberculoma and he was discharged on medical grounds and transferred to Kochi during October 1980 and discharged from service during October 1981 with 40% disability pension. At the time of discharge, the children were studying at Central School, Kochi and they stayed in Kochi till the completion of the academic year of the children. During May, 1982, he settled at Shine Nivas in Velinallor village at Kottarakara taluk which is situated in 49 cents of property purchased by him with his funds. Till June 1983, they resided together and thereafter she deserted him and the children and started residing with one Karunakaran of Oolankunnil House, Karingannor. Thereafter they never resided together.

3. The building with 49 cents of land was purchased with his funds, but her name was also added. By spending huge amount, household articles were purchased. An amount of Rs. 11,000/- was spent for reclaiming 73 cents of property settled in the joint names of the plaintiff and the defendant. The education expenses of the children were also met by him. Even while she was residing along with him in his workplace, she developed illegal intimacy with several persons. She had even tried to kill him by using poison in food articles. He shifted his residence with the children to his parental house during December, 1983. She was causing disturbance, so he had to shift to a rented house. He got employment in Naval NCC unit at Kochi. But he was terminated from service as he could not produce his service records which were illegally detained by her. During October, 1987, she had taken her daughter and filed a false case against the plaintiff and their son which was later ended in acquittal. She also involved in criminal cases and a case was pending as CC. No. 509/1986 before Judicial First Class Magistrate Court, Kottarakara in which the defendant was an accused. The defendant was illegally detaining the property and getting yield from the property. Under such circumstances, the plaintiff was constrained file OS. No. 359/1985 for partition of the entire 1.22 acres of land in their joint names and that suit was decreed in part and the appeal is pending against the same. Their daughter Minimol deposed against the respondent in that case.

4. After getting custody of the daughter, she filed OS. No. 28/1988 claiming maintenance. In OS. No. 359/1985, the defendant filed written statement contending that the marriage between them was solemnized on 12.8.1968. In OS. No. 28/1988 apart from claiming maintenance, she claimed for return of gold ornaments or in the alternate its value and that suit was decreed in part granting maintenance at the rate of Rs. 200/- to the defendant and Rs. 250/- to the daughter, but the claim for value of gold ornaments was rejected. Though the Court below has granted only Rs. 250/- per month as maintenance to the child, he was meeting the educational expenses till she completed her Master Decree in English and B.Ed Course. With unholy alliance with political leaders, the defendant tried to do away him. He had to file complaint before the Superintendent of Police, Kollam and the Home Secretary in this regard. Thereafter the harassment stopped.

5. The defendant again filed OS. No. 86/1996 before the Family Court, Thiruvananthapuram seeking enhancement of maintenance and also marriage expenses of the daughter which was later transferred to the Family Court, Kollam and renumbered as OS. No. 32/1996. During the pendency of the suit, the defendant by forging the signature of the daughter, instituted OS. No. 86/1996 before the Sub Court, Kottarakara claiming Rs. 1,25,000/- for marriage expenses of Minimol and the same was also transferred to the Family Court, Kollam as per order in transfer petition in CMC. No. 87/1998 where it was renumbered as OS. No. 243/1999. The defendant also filed OS. No. 52/1998 claiming 30 sovereigns of gold ornaments or its value and Rs. 25,000/- cash. Minimol later got employment and married to one Suresh Babu and the marriage was solemnized on 1.12.1996. The son was all along with him. He was paying maintenance without any legal marriage.

6. Due to wrong legal advice, he filed OP(HMA) No. 522/1994 for dissolution of marriage on the ground of cruelty, desertion and adultery before the Family Court, Thiruvananthapuram and that was later transferred to the Family Court, Kollam where it was renumbered as OP No. 283/1994. Since there was no pleading in the petition regarding solemnization of marriage, when he understood that he could not succeed in the petition and get divorce, he filed a petition to withdraw OP. No. 283/1994. The same was allowed and he filed this suit for declaration.

7. In the meanwhile, OS. Nos. 32/1996, 52/1998 and 243/1999 were tried jointly and the same were disposed of by a common judgment by which OS. No. 32/96 was allowed in part, OS. No. 52/1998 was dismissed and OS. No. 243/1999 were decreed. The plaintiff filed appeal against OS. Nos. 32/1996 and 243/1999. There was no relationship between the plaintiff and the defendant after June, 1983 and she filed a complaint alleging bigamy and it was tried as CC.1262/1992 before the Judicial First Class Magistrate Court, Paravoor alleging offences under section 494 and 114 of the Indian Penal Code and the same ended in acquittal holding that there was no valid marriage. It is necessary to get a declaration that there was no legal marriage between the plaintiff and the defendant and she is not his legally wedded wife and that prompted him to file the suit.

8. The respondent/defendant entered appearance and filed counter statement contending as follows:

"The suit is not maintainable. The appellant and the respondent were in love and they were neighbours and when this was known to the relatives of both the parties, they wanted to resile from their relationship. But they were not amenable for the same and relatives of both the parties decided to conduct their marriage. Accordingly on 4.4.1968 (originally it was mentioned as 12.8.1968, but later amended as per order in IA. No. 581/06) conducted their marriage from the house of the respondent as per custom by tying thali and exchange of saree and this was admitted by him in the earlier proceedings namely OP. No. 283/1994. After the marriage, they started residing together and in that wedlock, two children were born to them and this fact was admitted by him in the petition itself. The allegation was that the father and relatives of the respondent came to know about their relationship on 4.4.1998 and they manhandled the appellant and due to their compulsion, he decided to marry her etc were not correct and these allegations were made only for the purpose of denying the status of the wife to the respondent and to avoid payment of maintenance to her and to include his present wife as his wife in the official records. After customary marriage, in order to strengthen that marriage, an agreement dated 12.8.1968 was registered affirming their intention to live together as husband and wife on the basis of the marriage already conducted. In connection with the marriage, the father of the respondent had executed a settlement deed in respect of 73 cents of land in joint names of the appellant and the respondent and it is being managed by her father. Apart from this, 30 sovereigns of gold ornaments and Rs. 25,000/- were given which was misappropriated by the appellant and the marriage was solemnized as per the custom prevailing in the Hindu community and he had tied thali as well and the allegations contra are not correct. After the delivery of the first child, the appellant himself had taken the respondent and the child to his workplace and the allegation contra that due to the pressure exerted by her father they were taken to the workplace is not correct. They were living together as husband and wife happily and she was discharging all her duties as a wife. While so, he was transferred to Mumbai and he had taken her and the child to Mumbai and he got some illness and she was looking after him at that time. Thereafter he was transferred to Kochi and they came and started residing there. After he was discharged from service, a house was constructed in the joint property with name 'Shine Nivas' and they were residing together in that house. The allegation that she left the house without any reasonable cause and she was ill treating him etc were not correct. While they were living together as husband and wife, he had illicit relationship with several women and when this was questioned, she was ill treated by him and that compelled her to leave the matrimonial house with the female child on 1.1.1983 and thereafter he deserted them."

9. The allegation that he purchased 49 cents of land with his funds and constructed a building etc are not correct. They constructed the house with joint funds and on 1.1.1981 they started living in the house with the children. While so, on 1.10.1983, he had sold 56 cents of land and that property was entrusted by her father and with that funds, he purchased a property on 5.12.1983 in his name and he shifted his residence to that house. The allegation that he was spending money for the education of the children and she tried to do away him with the help of political leaders and she was leading an illicit relationship with one Karunakaran etc were not correct and denied. The various litigations mentioned in the petition were admitted. When the petition for enhancement of maintenance was allowed, in order to avoid payment of such maintenance, he had filed the present petition without any bonafides. Except this petition, in all other cases, he had admitted the marriage and the relationship and it is only with a malafide intention to avoid payment of future maintenance that the present petition has been filed and as such, the appellant was not entitled to get any relief and she prayed for dismissal of the petition.

10. In order to prove the case of the appellant, PWs 1 to 3 were examined and Exts. A1 to A4 were marked on his side. In order to prove the case of the respondent, DWs 1 and 2 were examined and Exts. B1 to B5 were marked on her side. After considering the evidence on record, the Court below found that there was valid marriage between the plaintiff and the defendant and the plaintiff is not entitled to get the declaration as prayed for and he did not challenge the relationship at the earliest point of time and dismissed the suit. Aggrieved by the same, the present appeal has been preferred by the appellant/plaintiff before the Court below.

11. The appellant filed IA. No. 3099/2014 for reception of documents and also filed IA. No. 3329/2014 for reception of further documents. As regards IA. No. 3099/2014 is concerned, the documents produced were all photostat copies and Annexures 1 and 2 documents were available with the appellant even earlier and those documents are not relevant for the purpose of this case as well. So that petition cannot be allowed and the same is liable to be dismissed.

12. As regards the documents in IA. No. 3329/2014 is concerned, it is the certified copy of the judgment of this Court in MFA. No. 382/2001 filed against O.S. 243/1999 of the Family Court, Kollam between the same parties. So the application is allowed and copy of the document is received and marked as Ext. A6.

13. The appellant also filed IA. No. 3/2014 for amendment of the plaint seeking an alternate relief of dissolution of marriage on the ground of desertion and cruelty by adding para (13-a) and relief (ia).

14. As regards the amendment is concerned, the appellant has earlier filed an original petition for dissolution of marriage on the same ground and as per Ext. A1 order in IA. No. 144/2001 in OP. No. 283/2004 of Family Court, Kollam, he had withdrawn that petition with liberty to file a fresh petition as according to him, there was no marriage at all and as such, that petition is not maintainable. It is thereafter that the appellant had filed the present suit for a declaration that there was no marriage and the respondent is not his wife. He had adduced evidence on that aspect and lost the case and thereafter he filed the present appeal and it is during the pendency of this appeal that the present application for amendment has been filed taking an inconsistent prayer of dissolution of marriage on the ground of cruelty and desertion. It is true that the parties can take inconsistent plea but at the time of trial, they must choose any one of the same and they cannot take both, which is contradictory and destructive to each other. He had no intention to give up his case that there is no valid marriage. So under such circumstances, the amendment as sought for cannot be granted. The learned counsel for the appellant relied on the dictum laid down in Kunhaliumma and others v. P.C. Rabiumma and others MANU/KE/0690/1996 : (1997 (2) KLJ 565) and G. Nagamma and another v. Siromanamma and another (MANU/SC/1067/1996 : 1996 (2) SCC 25) which are not applicable to the facts of this case on this aspect which has been dealt with separately while disposing IA. No. 3/2014 by a separate order. So the appellant is not entitled to get amendment of the plaint incorporating an inconsistent plea at a belated stage without giving up a plea that there is no marriage. So the petition is liable to be dismissed and we dismissed the same vide a separate order.

15. Heard Sri. K. Subashchandra Bose, the learned counsel appearing for the appellant and Sri. Leo George, the learned counsel appearing for the respondent.

16. The counsel for the appellant argued that there is no evidence to show that there was customary marriage as provided under Section 7 of the Hindu Marriage Act. When the existence of marital relationship is denied, then it is for the person who asserts the solemnization of marriage to prove that there was valid marriage solemnized as per the custom prevailing in the community. Further the respondent has no consistent case regarding the date of solemnization of marriage. Further, except the agreement of marriage and they resided together for long time, there is no other evidence to show that apart from that any form of marriage was conducted. The custom regarding marriage was also not proved. It is settled law that when solemnization of marriage itself is in dispute, then cohabitation however long alone is not sufficient to dislodge the burden cast on the person who claims there was valid customary marriage solemnized to prove that fact. Such an evidence is lacking in this case. Further, the admission in earlier proceedings alone is not sufficient to take away the burden cast on the respondent to prove the valid marriage where the solemnization of marriage itself is in dispute. The findings in the criminal court is not binding on the civil court. So according to the learned counsel, the Court below ought to have considered the evidence in the right perspective and arrived at a conclusion regarding this aspect which has not been done by the court below. He had also argued that there is no limitation to file the suit for declaration as any question regarding marriage under the law relating to marriage is outside the purview of the Limitation Act by virtue of section 29 (3) of the Act. The learned counsel also argued that if for any reason this Court found that there is any valid marriage, the petition filed by the appellant to amend the petition granting relief of dissolution of marriage on the ground of cruelty and desertion can be considered as evidence is there on this aspect.

17. On the other hand, the counsel for the respondent submitted that the declaration that there is no marriage, is outside the purview of the Hindu Marriage Act and it is a common law remedy and as such, the bar under Section 29(3) of the Limitation Act is not applicable and only general law of limitation alone is applicable. He had relied on the decision reported in R.P. Agrawal v. Smt. Urmila Devi (MANU/UP/0787/1981 : 1982 All. L.J 260) for this proposition. He had also argued that even in the earlier proceedings, he had admitted the customary marriage and suffered an order of maintenance and as such, he is estopped from now contending that there was no marriage. Further, it is settled law that long cohabitation and acceptance of the society as husband and wife leads to a presumption that there was a customary marriage and law always presumes marriage and against concubine age. All the records will go to show that she was declared as wife by the appellant and long silence on this aspect also will lead to the presumption that there was valid marriage and as such the court below was perfectly justified in dismissing the suit.

18. It is an admitted fact that the appellant and the respondent were neighbours and they were in love and when their love affair came to the knowledge of the relatives of both, they agreed to marry and live together as husband and wife and Ext. B3 marriage agreement dated 12.8.1968 was registered and they were accepted as husband and wife by the family members and they lived as husband and wife till they fell apart during 1983 and two children were born to them in that wedlock and they led a happy life till 1983 and these facts are not in dispute. It is also not in dispute that as part of the marriage, 73 cents of land belonging to the father of the respondent was settled in joint names of the appellant and the respondent. It is also not in dispute that as early as in 1988, the respondent filed OS. No. 28/1998 for maintenance before the Family Court, Thiruvananthapuram in which the appellant had admitted the marital relationship and suffered an order of maintenance at the rate of Rs. 200/- per month each to the respondent and the minor daughter.

19. The case of the appellant was that while they were in love, they were having carnal relationship. On 4.4.1968 during night while they were together, they were caught by the father of the respondent and her relatives and they manhandled the appellant and he was compelled to take her to his house. Thereafter he assured that he would marry her and on the basis of the assurance, she went to her house and he went to his workplace and thereafter he came during August, 1968 and on 12.8.1968 Ext. B3 marriage agreement was registered and the settlement deed in respect of 73 cents of land was also executed by the father of the respondent in their favour and according to him, there was no customary marriage conducted and due to the ill treatment and immoral relationship of the respondent with other persons including one Karunakaran, it resulted in their strained relationship and desertion by the respondent. But according to the respondent, when their love affair came to the knowledge of the family members, both the family members were not amenable for the marriage and since both the appellant and respondent were adamant in their stand, they agreed to conduct the marriage and accordingly on 4.4.1968 customary marriage was conducted from her house and thereafter on 12.8.1968 also a marriage with all relatives was conducted and Ext. B3 agreement was registered. Thereafter they were living together as husband and wife which was accepted by the family members and two children were born to them in that wedlock and they lived together till the middle of 1983. According to the respondent, the appellant had developed some illegal intimacy with other ladies which when questioned, resulted in their strained relationship and she had to leave the matrimonial home along with the female child. So the fact that from 4.4.1968 onwards till June, 1983 they lived together as husband and wife to the knowledge of the entire society and they were accepted in that status by the society including their family members and two children were born to them in that wedlock and the appellant never treated the respondent as a concubine is not disputed. They were also treated as the children born in lawful wedlock by both the parties.

20. It is true that when there is dispute regarding marriage, solemnization of customary marriage has to be established. This can be proved by adducing evidence and also by conduct of parties. The appellant had not mentioned in the petition as to the nature of custom prevailing in the community regarding marriage. He had only stated that there was no valid marriage and there was no solemnization of marriage as per custom and there was no tying of thali or exchange of garlands or ring. So even according to the appellant, the custom prevailing in the community is either tying of thali or exchange of garlands in the presence of family members. Before going into the facts of the case on the question of marriage, it is helpful to consider the precedents on this aspect.

21. In the decision reported in Chakki v. Ayyappan (MANU/KE/0579/1988 : 1988 (1) KLT 556) it has been held that:

"The essential requirements of a Hindu Marriage are (i) invocation before sacred fire, (ii) sapthapathi that is taking seven steps by the groom and bride jointly before the sacred fire. Exchange of rings or pooja of Thali etc were not pleaded as specific requirements of the customary marriage of the community. The appellant cannot succeed only by showing that in other marriages of the community there were exchange of rings and pooja of Thali etc. Those can be accepted as requirements of customary marriage only if they are proved to be sufficiently ancient and definite, and that members of the community recognise them as obligatory. It should also be shown that those formalities were unalterable. There are no pleadings, much any proof, of an ancient definite and unalterable custom in this regard".

22. In the decision reported in Challamma v. Tilaga and others MANU/SC/1350/2009 : (2009 (10) SCALE 511) : (2009 (9) SCC 299 : [2010 (1) AWC 533(SC)] wherein the nature of proof to be adduced regarding solemnization of marriage, it has been observed that:

"Long cohabitation and acceptance of society of man and woman as husband and wife goes long way in establishing a valid marriage".

23. In the same decision reported in Tulsa v. Durghatiya (MANU/SC/0424/2008 : 2008 (4) SCC 520) was relied on where it has been held that:

"At this juncture reference may be made to Section 114 of the Evidence Act 1872. The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which things likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.

A number of judicial pronouncements have been made in this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy, Their Lordships of the Privy Council laid down the general proposition that:

... where a man and woman are proved to have lived together as man and wife, the law presumes unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

In Mohabbat Ali Khan v. Mohd. Ibrahim Khan The Privy Council once again laid down that:

The law presumes in favour of marriage and against concubinage, when a man women have cohabited continuously for a number of years.

It was held that such presumption could be drawn under Section 114 of the Evidence Act.

It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same [Ranganath Parmeshwar Panditrao Modi v. Eknath Gajanan Kulkarni (MANU/SC/0340/1996 : 1996 (7) SCC 681) and Sobha Hymavathy Devi v. Setti Gangadhara Swamy (MANU/SC/0064/2005 : 2005 (2) SCC 244)]. Such presumption can be validly raised having regard to Section 50 of the Indian Evidence Act. A heavy burden, thus lies on the person who seeks to prove that no marriage has taken place".

24. In the decision reported in Indra Sarma v. V.K.V. Sarma (MANU/SC/1230/2013 : AIR 2014 SC 309), the Apex Court had considered the concept of marriage and marital relationship. In paragraphs 23, 24, 29, 30, 31 and 32 of the judgment it reads as follows:

"23. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the 'Consortium Omnis Vitae" which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, succession ship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.

24. Marriage in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O'Regan, J., in Dawood and Anr. v. Minister of Home Affairs and Ors. MANU/SACC/0032/2000 : 2000 (3)SA 936 (CC) noted as follows:

Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends.

29. Section 7 of the Hindu Marriage Act deals with the "Ceremonies for a Hindu marriage' and reads as follows:

7. Ceremonies for a Hindu marriage:-

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

30. Entering into a marriage, therefore, either through the Hindu Marriage Act or the Special Marriage Act or any other Personal Law, applicable to the parties, is entering into a relationship of "public significance", since marriage being a social institution, many rights and liabilities flow out of that legal relationship. The concept of marriage as a "civil right" has been recognised by various courts all over the world, for example, Skineer v. Oklahoma MANU/USSC/0152/1942 : : US 535 (1942), Perez v. Lippold 198 P.2d 17, 20.1(1948), Loving v. Virginia MANU/USSC/0093/1967 : 388 US 1(1967).

31. We have referred to, in extenso, about the concept of "marriage and marital relationship" to indicate that the law has distinguished between married and unmarried people, which cannot be said to be unfair when we look at the rights and obligations which flow out of the legally wedded marriage. A married couple has to discharge legally various rights and obligations, unlike the case of persons having live-in relationship or, marriage-like relationship or de facto relationship.

32. Married couples who choose to marry are fully cognizant of the legal obligation which arises by the operation of law on solemnization of the marriage and the rights and duties they owe to their children and the family as a whole, unlike the case of persons entering into live-in relationship. This Court in Pinakin Mahipatray Rawal v. State of Gujarat MANU/SC/0916/2013 : (2013) 2 SCALE 198 held that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on."

25. In the decision reported in Thakur Gokalchand v. Parvin Kumari (MANU/SC/0077/1952 : AIR 1952 SC 231) it has been held that long cohabitation will give raise to a presumption of valid marriage, but it is a rebuttable presumption. Further in the same decision it has been held that:

"It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and they were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from a long cohabitation is rebuttable, and, if there are circumstances which weaken or destroy that presumption, the court cannot ignore them".

26. In the decision reported in Karedla Parthasaradhi v. Gangula Ramanamma (MANU/SC/1143/2014 : AIR 2015 SC 891) in paragraphs 18 to 20 deal with the circumstances under which presumption as to legality of marriage can be drawn as follows:

"18. The question as to in which circumstances, the Court can draw presumption as to the legality of marriage was succinctly explained by Mulla in his book-Hindu Law, 17th Edition in Article 438, page 664 under the heading-"Presumption as to legality of marriage" - in following words:

Presumption as to legality of marriage-Where it is proved that a marriage was performed in fact, the court will presume that it is valid in law, and that the necessary ceremonies have been performed. A Hindu marriage is recognized as a valid marriage in English law.

Presumption as to marriage and legitimacy-There is an extremely strong presumption in favour of the validity of a marriage and the legitimacy of its offspring if from the time of the alleged marriage the parties are recognized by all persons concerned as man and wife and are so described in important documents and on important occasions. The like presumption applies to the question whether the formal requisites of a valid marriage ceremony were satisfied. Similarly the fact that a woman was living under the control and protection of a man who generally lived with her and acknowledged her children raises a strong presumption that she is the wife of that man. However, this presumption may be rebutted by proof of facts showing that no marriage could have taken place.

19. The question arose before this Court in Thakur Gokal Chand v. Parvin Kumari @ Usha Rani MANU/SC/0077/1952 : AIR 1952 SC 231, as to whether on facts/evidence, the Court could record a finding about the existence of lawful marriage between the parties and, if so what should be the principle to be applied while deciding such question. Learned Judge-Fazal Ali J, speaking for the Bench examined this question in the context of Section 50 of the Indian Evidence Act, 1872 and other relevant provisions of law and laid down the following principle of law for determination of such question:

"It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and they were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from a long cohabitation is rebuttable, and, if there are circumstances which weaken or destroy that presumption, the court cannot ignore them".

20. In recent time, this Court in Madan Mohan Singh and Ors. v. Rajni Kant and Anr. MANU/SC/0596/2010 : (2010) 9 SCC 209, relying upon the aforesaid principle of law, reiterated the same principle in following words:

24. The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. (Vide Mohabbat Ali Khan v. Mohd. Ibrahim Khan MANU/PR/0068/1929 : AIR 1929 PC 135, Gokal Chand v. Parvin Kumari MANU/SC/0077/1952 : AIR 1952 SC 231, S.P.S. Balasubramanyam v. Suruttayan MANU/SC/0042/1994 : (1994) 1 SCC 460, Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni MANU/SC/0340/1996 : (1996) 7 SCC 681 and Sobha Hymavathi Devi v. Setti Gangadhara Swamy MANU/SC/0064/2005 : (2005) 2 SCC 244)".

27. In the decision reported in Surjit Kaur v. Garja Singh and others (MANU/SC/0892/1993 : 1994 (1) SCC 407) it has been held that:

"Without pleading any custom prevalent in the area and performance of ceremonies, mere statement that gur was distributed after marriage and the couple lived as husband and wife held not sufficient to establish marriage."

28. In the decision reported in Bhaurao Shankar Lokhande v. The State of Maharashtra (MANU/SC/0068/1965 : AIR 1965 SC 1564) it has been held that:

"Solemnise marriage means to celebrate the marriage with proper ceremonies and in due form. Mere going through certain ceremonies with an intention of marriage will not make the ceremonies prescribed by law or approved by custom."

That was a case where the standard of proof regarding marriage while considering the conviction under section 494 of the Indian Penal Code, it has been held that such things will have to be proved beyond reasonable doubt.

29. In the decision reported in Jisha A.B. v. K.S. Dilip (MANU/KE/0971/2003 : ILR 2004 (1) Kerala 228) it has been held that:

"In order to prove valid marriage, exchange of garlands and taking one or two steps as directed by the person is not sufficient."

That was a case where the marriage was conducted in a suspicious circumstance and there was no consummation of marriage and the wife filed an application to declare the marriage as null and void immediately after the incident. Under such circumstances and considering the evidence in that case, a Division Bench of this Court has held that the evidence adduced in that case is not sufficient to hold that there was proper solemnization of marriage.

30. In the decision reported in Leelamma v. Radhakrishnan (MANU/KE/0058/2005 : 2005 (2) KLT 212), it has been held that "mere long cohabitation and entry in the ration card and other documents executed in her favour without proving the performance of marriage conducted as per the customary rights of parties existence of marriage cannot be presumed".

31. It is clear from the above decisions that normally long cohabitation of a man and woman living as husband and wife accepted by the society as such will lead to a presumption that there was a valid marriage as per custom unless it is rebutted by strong evidence as law is always in favour of marriage and not concubinage. It is also clear from the dictum that customary form of marriage prevailing among community has to be proved and omission of certain things alone will not lead to a presumption that there was no valid marriage.

32. As regards the admission which has been considered by the Apex Court in Nagubai Ammal and others v. B. Shama Rao and others (MANU/SC/0089/1956 : AIR 1956 SC 593) and held that:

"An admission is not conclusive as to the truth of matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel."

33. Further in the same decision it has been held that:

"It is no doubt true that what a party himself admits to be true may be reasonably be presumed to be so. But before this rule can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. A statement by a party that certain proceedings were fraudulent and not collusive in character would not, be sufficient, without more, to sustain a finding that the proceedings were collusive".

34. Further in the same decision it has been held that:

"The maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto.

The principle of election does not forbid a party from claiming the same relief against different persons in different suits in respect of the same property though the grounds of relief are different and inconsistent."

35. With this principles in mind, the facts of this case has to be considered.

36. It is an admitted fact even as per the pleadings in the plaint and the evidence of PW1 that he had whole heartedly accepted the defendant as his wife and they lived together as husband and wife as though it was after a lawful marriage with an intention to continue that status as expected from a married person and with an intention to procreate children expecting mutual consortium from each other. It is also admitted by PW1 that, in an earlier proceedings namely OS. No. 28/1988 before the Family Court, Thiruvananthapuram filed by the respondent along with her minor daughter for maintenance, he had admitted the marriage between the appellant and the respondent on 4.4.1968 and registration of Ext. B3 agreement. He had also admitted that their relationship was accepted by the members of both the families and treated them as husband and wife and on 12.8.1968 the father of the respondent had settled 73 cents of land in their joint names as sreedhanam payable to the respondent in connection with the marriage.

37. Further in Ext. B3 agreement it is mentioned that : So it is clear from this that even prior to the execution of the document, there was a customary marriage conducted and only to strengthen the same, this marriage agreement was executed. It cannot be said from this recital that the marriage relationship has started only on the basis of this document.

38. Ext. B4 is a written statement filed by the appellant in OS. No. 359/1985 before the Munsiff Court, Kollam. He had categorically stated in paragraph-3 as follows:

So there is a categoric admission on the part of the appellant that there was customary marriage conducted on 4.4.1968 followed by registration of Ext. B3 agreement on 12.8.1968 to strengthen the same.

39. Even in Ext. B5, a copy of the petition filed by the appellant as OP. No. 2893/1999 of Family Court, Kollam, he had categorically stated that the marriage between them was on 4.4.1968. So there is specific assertion by the plaintiff himself in the written statement filed by him in the earlier proceedings between the same parties that there was a customary marriage solemnized as per the custom prevailing in the community on 4.4.1968 and only to strengthen that, Ext. B3 agreement dated 12.8.1968 was registered. He had no case when he was examined as PW1 that it was made by him by mistake or under some compelling circumstances and he had no explanation as to why he had made such admissions in unambiguous terms knowing that it is detrimental to his interest. It is also admitted by him that on the basis of the admission made by him regarding the marriage between the appellant and the respondent maintenance was ordered in the year 1988 and he paid the maintenance without challenging the same. If really he wanted to challenge the relationship, he ought to have challenged the same at that time and got a declaration that there was no valid marriage and he has no liability to pay maintenance to the respondent which he did not do. So he cannot now resile from his earlier admission and take a different stand that there was no valid marriage and he wanted to get a declaration as prayed for.

40. Further PW1 had no case either in the petition or at the time of evidence what is the nature of custom prevailing among the community to which both belong regarding the marriage. He had only stated that there was no tying of thali or exchange of garlands happened. But RW1 had categorically stated that on 4.4.1968 a customary marriage was conducted from her house in which he had tied thali and exchanged garlands, but his family members were not agreeable for that marriage and it was done in a simple manner. Thereafter on 12.8.1968 also the same ceremonies were repeated and thereafter Ext. B3 agreement was executed. No suggestion was given to RW1 that it was not the custom prevailing in the community for solemnization of marriage. RW2, another witness to the marriage, also deposed that he knew both of them and a customary marriage was conducted on 4.4.1968 with some of the family members alone and thereafter on 12.8.1998 detailed ceremonies were conducted for the marriage followed by execution of Ext. B3 document. He had stated that on 4.4.1968 there was tying of thali and exchange of garlands and the marriage was conducted as per custom. He had also stated that on 12.6.1968 tying of thali was not there and exchange of garlands was done. That also shows that since tying of thali was done earlier, that was not repeated on 12.6.1968. To this witness also, there was no suggestion given that, that was not the custom prevailing in the community for a valid marriage. Sapthapathi is necessary only in a case where that was part of the custom followed by the community otherwise it is not a necessary ritual to be performed to make the marriage legal. The evidence of PW2 is not helpful to prove that there was no marriage conducted on a prior date to 12.8.1968 as he was examined only to prove that he went on that day along with PW1 and RW1 to the Registrar's office in a car driven by him. The evidence of PW3 is not helpful as, according to him, there was no document in their SNDP Sakha to prove the marriage between the appellant and the respondent. Merely because the marriage was not registered with SNDP sakha of their locality or it was not informed to them alone is not sufficient to declare that the marriage is not valid. So from the circumstances and also on the basis of the evidence, the Court below was perfectly justified in coming to the conclusion that the evidence adduced on the side of plaintiff is not sufficient to dislodge the presumption of marriage between the parties on account of the circumstances mentioned above to grant a decree for declaration as prayed for and rightly rejected the same. The court below also found that the respondent proved that there was a customary marriage conducted on 4.4.1968. We do not find any reason to interfere with the same.

41. Next point that arise for consideration is, whether the petition is barred by limitation? The counsel for the appellant submitted that, by virtue of Section 29(3) of Limitation Act, the period of limitation is not applicable to the proceedings relating to marriage under the statute.

42. On the other hand the counsel for the respondent submitted that, that section will apply only to cases which are coming under the purview of Marriage Laws.

43. Section 29 of the Limitation Act reads as follows:

"29. Savings-(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872).

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.

(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend."

44. Earlier this aspect was covered by Section 29(2) of the Indian Limitation Act 9 of 1908, which reads as follows. "Nothing in this act shall apply to suits under the Indian Divorce Act".

45. While considering this provision in respect to recovery of dower, the Allahabad High Court earlier found in Ahmadi Bibi v. Mohammad Mabood (MANU/UP/0097/1979 : AIR 1979 Allahabad 374), that suit in respect of recovery of dower is outside the purview of the Limitation Act in view of Section 29(3) of the Act. The law commission in its third report dealt with the necessity for making this applicable to other enactments as well dealing with marriage. Further in this report in respect of Section 29(3) under note 25 observed regarding the ruling of the Allahabad High Court mentioned above and clarified that the exclusion clause in Section 29(3) is not really intended to exclude such claims from the purview of the Act. Its object is to exclude matrimonial litigation, proper commenced under some statute i.e. statutory proceedings for divorce, judicial separation and the like, which themselves terminate or suspend the legal bond of marriage. The reason for not making the Limitation Act applicable to matrimonial cases was presumably that these statute themselves have their own inbuilt doctrines such as condonation, laches and the like, which can be taken into account by the court. Subject to these doctrines, court has a discretion as to the grant of matrimonial relief in the exercise of which, it can take into account the conduct of the parties, the interest of the children and other relevant factors. These consideration have no application however to a Muslim wife's claim for a dower which is purely monitory claim that can be decided on fairly precise rules. It therefore stands on a different footing from, say, a petition for divorce or judicial separation in regard to which (as stated above) special consideration for laches, discretion and the like applied and also recommended under clause 29.26 that 'we need not, pause to discuss, if the Allahabad ruling mentioned is correct on the present wording of Section 29(3), but obviously the position resulting therefrom needs to be set right. The point being one of the recurring frequency and some steps need to be taken to ensure that the claim for dower does not remain totally outside the Act'. It was also recommended that, to specify the Acts to which relating to marriage and divorce this has to be included. We are not inclined to accept the dictum laid by the Allahabad High Court in Ahmadi Bibi's case supra

46. The Hindu Marriage Act deals with the conditions for void and voidable marriages and grounds for nullity of marriage, Judicial separation and divorce. In order to apply under this Act or any other Acts dealing with marriage and divorce, the persons applying therein must admit the performance of marriage in some form, but challenge the same on any of the grounds mentioned for annulling the marriage or dissolve the marriage under the statute. So the primary criteria for applying the provisions of the marriage laws relating to marriage and divorce presupposes a solemnisation of marriage. If a party wants a declaration that there was no marriage and no marriage was conducted and thereby the status of the wife or husband should not be given to any of the spouses, then it will be a relief outside the purview of the matrimonial laws under the statutes no such declaration be possible and that is a common law remedy available which was codified into a right under Section 34 of the Specific Relief Act. Once such declaration has to be sought for, which is not coming under the purview of the Marriage Laws as per the statutes provided for that purpose, then the bar under Section 29(3) of the Limitation Act will not be attracted and for such suits or proceedings, the general of limitation available for seeking such declaration alone can be attracted.

47. This aspect has been considered by the Allahabad High Court in the decision reported in R.P. Agrawal v. Smt. Urmila Devi (MANU/UP/0787/1981 : 1982 Allahabad Law journal 260), where it has been held that, where an application for maintenance under Section 488of Code of Civil Procedure 1898(old) was filed by alleging solemnisation of marriage before coming into force of Hindu Marriage Act to have that marriage declared invalid could be governed by Article 58 and not residuary Article 113 and hence would be barred by limitation, when filed after expiry of three years from the date of application under Section 488. Further as Hindu Law of Marriage which was in force before the commencement of Hindu Marriage Act, 1955 did not provide for a suit for a declaration that the marriage solemnised while the applicant's husband by earlier marriage was alive and invalid. Further even going by the dictum mentioned above, it will be seen that, in order to attract the provisions of the Hindu Marriage Act, for nullifying the marriage or dissolving the marriage, it can be done only on the grounds available therein and solemnisation of the marriage must be admitted. Further in this case, appellant is not admitting the marriage, but only admitting the relationship and he wanted a declaration that there was no marriage at all.

48. Further it was admitted by the appellant that, even in the year 1988, when they started residing separately, the respondent filed an application for maintenance for herself and for the minor child and in that case, the appellant admitted the existence of marriage and suffered an order against him. Even in the subsequent proceedings between the parties also, he did not object the existence of marital relationship between the parties, which was necessary for deciding the issues in those cases. So he did not object the status of the respondent as his wife for want of customary marriage at the first point of time when it occurred for consideration. But suffered an order against him.

49. Article 58 of Limitation Act which reads as follows:

In both these articles, the Limitation will start when the right to sue first accrues.

50. As far as the appellant is concerned, that has accrued to him when the respondent had made a claim for maintenance, alleging that she is the legally wedded wife of the appellant and a suit filed long after suffering an order of maintenance namely nearly 17 years of that cause of action is highly belated and barred by limitation. Since it is a question of law which has to be considered by the court even if it is not raised that can be considered by the appellate court at the appellate stage in an appeal filed by the appellant invoking the power under Order 41 Rule 22 and 33 of Code of Civil Procedure. So the suit filed after three years of the accrual of the cause of action to the appellant to challenge the same, is clearly barred by limitation and on that ground also the appellant is not entitled to get the relief claimed.

51. Since we have already dismissed the application for amendment seeking an alternate relief of dissolution of marriage on the ground of cruelty and desertion in the same proceedings, consideration of that in this appeal does not arise.

52. In view of the discussions made above, the appeal lacks merits and we do not find any reason to interfere with the findings of the court below and reverse the order of dismissal of the suit in order to grant a relief to the appellant and the appeal is liable to be dismissed. We do so.

In the result, the appeal fails and the same is hereby dismissed. Considering the circumstances of the case, parties are directed to bear the respective costs in the appeal.

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